Gavin Howe
Opening statements are an important part of a trial, as they help to form the jury's first impression of the case. While they are not the place for argument, they are an opportunity for the attorney to tell the jury what the case is about, what evidence they will hear, and the story from their client's perspective. The attorney should also explain what they plan to prove and how they will do so, while remaining truthful and avoiding expressing personal opinions. While the discussion of law during opening statements is generally not allowed, lawyers are commonly permitted to state their themes at the beginning and end, provided that the content in between does not become argumentative.
| Characteristics | Values |
|---|---|
| Purpose | To tell the jury what the case is about, what evidence they will hear, and the attorney's client's side of the story |
| Nature | Not an argument or discussion of the law, but a roadmap for the jury to follow |
| Facts | Should be stated affirmatively, without negating the other side's facts or position |
| Evidence | Should not explain the importance of evidence or suggest how it should be weighed |
| Theme | Should be used to bookend the statement, but the content between should avoid making arguments |
| Narrative | A strong narrative is better than an argument |
| Objections | Objections by opposing counsel are not permitted |
| Time | Typically between 10 and 45 minutes, but may vary depending on the complexity of the case and jurisdiction |
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What You'll Learn
Opening statements are not for arguing
Opening statements are a crucial part of a trial, often making or breaking a case. They are an opportunity for attorneys to present their client's side of the story, outline the anticipated proof, and provide a roadmap for the jury to follow. However, it is important to remember that opening statements are not the appropriate platform for arguing a case.
The primary purpose of an opening statement is to present the facts of the case and give an overview of the evidence that will be presented during the trial. While the recitation of facts may be slanted in favour of one party, it must remain truthful and avoid misstating the facts. It is not the place to discuss the law or argue how the jury should interpret the evidence. Instead, it is a chance to paint a picture of the case for the jury, so they can follow the evidence and place it within the context of the story.
Although jurisdictions and judges vary in how much argument they allow, most jurisdictions do not permit extensive argumentation or discussion of the law during opening statements. This is because the opening statement sets the tone for the trial and influences the jurors' first impressions of the case. It is well-established that jurors often make up their minds based on opening statements, so it is essential to provide a clear and concise roadmap without delving into argumentation.
To avoid arguments in an opening statement, attorneys should refrain from expressing personal opinions or discussing the absence of defence evidence. Instead, they should focus on presenting a compelling narrative that captures the jurors' attention and makes them interested in learning more. This involves using descriptive emotional content and body language to engage the jury without explicitly arguing a position.
In conclusion, while opening statements are essential in shaping the trajectory of a trial, they are not the platform for arguing a case. Attorneys must strike a delicate balance between presenting the facts and providing a roadmap for the jury, all while refraining from argumentative tactics that may influence the jurors' decision-making process prematurely.
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The importance of a strong narrative
Opening statements are crucial in a trial, as they set the tone and direction for the rest of the proceedings. They are an opportunity for attorneys to present their case, outline the evidence, and provide their client's perspective. While the specific rules vary across jurisdictions, most agree that opening statements should not be argumentative or include extensive legal discussions. Instead, they should focus on presenting a compelling narrative that captures the jury's attention and gives them a clear roadmap to follow.
A strong narrative in an opening statement is essential because it engages the jury and helps them understand the case. By presenting the facts in a clear, logical, and easy-to-follow manner, attorneys can paint a picture that sticks with the jurors and influences their perception of the evidence. This narrative should be constructed carefully, with a simple description of the case and a theme that ties everything together. For instance, in a case about whistleblower retaliation, an attorney may reference Oregon's whistleblower law, which "exists to protect and encourage employees to report illegal activity in the workplace." This provides context for the jury and sets the tone for the rest of the trial.
The use of descriptive emotional content can also be powerful in an opening statement. Instead of simply stating the facts, attorneys can use language that evokes an emotional response, making the narrative more memorable and persuasive. However, it is important to strike a balance and avoid excessive detail, as this may cause the jury to lose focus. The goal is to present the information in a concise, compelling manner that leaves a lasting impression.
Additionally, the body language and tone of the attorney delivering the opening statement are crucial components of the narrative. Non-verbal cues can often convey more than words, and the attorney's passion and conviction can influence how the jury perceives the case. Attorneys should also be mindful of their gestures, such as using open-handed gestures when referring to their witnesses to appear more inviting.
In conclusion, a strong narrative in an opening statement is vital because it sets the tone for the trial, captures the jury's attention, and provides a roadmap for their understanding of the case. By presenting a compelling story with emotional content, strategic use of language, and careful construction of facts, attorneys can leave a lasting impression that influences the jury's perception and ultimately impacts the trial's outcome.
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Using rhetoric and language to persuade
While the opening statement is not the place to argue a case, it is an opportunity for an attorney to use rhetoric and language to persuade the jury. The attorney should present the facts of the case in an orderly, easy-to-understand manner, and paint a picture of the case for the jury. This is achieved through the use of language and rhetorical techniques.
Firstly, the use of language is critical. The language should be "powerful", direct, and confident. The choice of words and phrases is important, as they should be chosen to produce a favourable psychological impact. For example, instead of saying "the evidence will show that Mrs Smith did not run the red light", it is more effective to say "Mrs Smith came to a complete stop at the signal", as the jury is more likely to remember the phrase "came to a complete stop".
Secondly, the use of rhetorical questions can be a powerful tool. These are questions that are asked, not to receive an answer, but to guide the jurors' search for answers and imply certain responses. For strong cases, these questions should be placed near the beginning of the statement, whereas for weaker cases, they are best placed at the end, to address the opponent's weak points.
Thirdly, the use of body language is important. It has been suggested that 80% of what we understand in a conversation is read through body language. Therefore, gestures and movements can be used to guide the jury's interpretation of the statement. For example, when pointing to your own witnesses, an inviting open-handed "give" gesture can be used.
Finally, the use of descriptive emotional content can be persuasive. For example, the use of a "hook", or a short attention-grabbing sentence or paragraph, can be used to motivate the jury to listen more closely.
Overall, the use of rhetoric and language in an opening statement is a powerful tool to guide and persuade the jury, and it is important for an attorney to carefully consider their choice of words and delivery.
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The role of the attorney
The role of an attorney in a trial is crucial, and their opening statement is an important part of the legal process. The attorney's opening statement is their opportunity to tell the jury what the case is about, what evidence will be presented, and their client's side of the story. A good opening statement will paint a picture of the case for the jury, helping them to understand the context of the evidence as it is presented.
The attorney for the plaintiff delivers the first opening statement, and the defence follows. The opening statement should explain what the attorney intends to prove and how they will do so. It should also mention the burden of proof and applicable law, and present the facts of the case in a clear, logical, and easy-to-understand manner. The attorney should refrain from arguing or discussing the law in detail during the opening statement, as it is not the appropriate place for this. Instead, the opening statement should serve as a roadmap for the jury, outlining the case and the evidence that will be presented.
The attorney should use descriptive language and, where appropriate, emotional content when referring to important facts. They should be affirmative, stating facts positively rather than negating the other side's position. For example, instead of saying, "the evidence will show that Mrs. Smith did not run the red light", the attorney should say, "the evidence will show that Mrs. Smith came to a complete stop at the signal". This is because the jury is more likely to remember the phrase "ran the red light" and may misinterpret the statement.
The opening statement is also an opportunity for the attorney to introduce themselves and their client, and to provide a brief overview of the case and the evidence that will be presented. They may also mention any key witnesses they intend to call and outline their expected testimony. The attorney should use body language effectively to engage the jury and create a compelling narrative.
In conclusion, the attorney's role in delivering the opening statement is to provide a clear and compelling outline of the case, present the evidence that will be introduced, and explain their client's position. It is an important opportunity to engage and motivate the jury to listen closely and understand the context of the trial.
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Jurors' impressions and decision-making
The opening statement is crucial as it provides the first impression of the case and shapes the impressions of the jury. It is an opportunity to introduce case themes and provide jurors with a framework to make sense of the information they will hear throughout the case. The opening statement should not contain arguments; rather, it should be a factual statement that lasts from 10 to 30 minutes. It should also be engaging and tell a story that the jury can follow easily and remember.
The opening statement forecasts to the jury the evidence they will see and hear during the trial, allowing them to know what to expect and understand the evidence when it is presented. It is important to note that the opening statement should not be read but practised beforehand and delivered by speaking directly to the jury, making eye contact to show belief in the case and familiarity with the events. The lawyer should also be friendly and smile.
The story of the case tells the jury what happened chronologically from the plaintiff or defendant's viewpoint. It should be presented in a way that is enjoyable and easy to understand, with a clear beginning, middle, and end. The use of metaphors and sensory language can help engage jurors and make them feel like they are participating in the story. Presenting the facts in a specific order that advances the lawyer's conclusion can also be persuasive.
While the opening statement is important, it is not the only factor influencing jurors' decisions. Studies have shown that a significant majority of jurors do not decide the case solely based on the opening statements but can keep an open mind and adjust their opinions after hearing new information. The type of case and the jurors' life experiences and biases can also play a role in their decision-making. For example, in a case involving financial loss, older jurors with relevant experience may have pre-existing opinions that shape their interpretation of the information presented during the trial. On the other hand, younger jurors with less life experience are more likely to be influenced by the evidence and testimony presented.
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Frequently asked questions
An opening statement is an opportunity for an attorney to tell the jury about the case, the evidence they will hear, and their client's side of the story. It is not a place to argue but to present the facts.
Most jurisdictions do not allow much discussion of the law during an opening statement. However, it is common for lawyers to state the applicable law during their opening remarks, and courts frequently allow lawyers to push the boundaries of acceptable opening-statement remarks.
Lawyers cannot be argumentative during an opening statement. They should also not ask questions, waste time on unimportant details, or go into excessive detail.
A good opening statement presents a compelling story or narrative that captures the jurors' attention and makes them interested in hearing more. It should be easy to understand and serve as a roadmap for the jury to follow.
